Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione Motonave Achille Lauro in Amministrazione Straordinaria
| Decision Date | 21 June 1991 |
| Docket Number | No. 1371,D,ALTRI-GESTIONE,1371 |
| Parties | , 19 Fed.R.Serv.3d 1277 Ilsa KLINGHOFFER and Lisa Klinghoffer Arbitter, as Co-Executrixes of the Estates of Leon and Marilyn Klinghoffer, Plaintiffs-Appellees, v. S.N.C. ACHILLE LAURO EDMOTONAVE ACHILLE LAURO IN AMMINISTRAZIONE STRAORDINARIA; Commissario of the Flotto Achille Lauro in Amministrazione Straordinaria; Chandris (Italy) Inc.; Port of Genoa, Italy; Club ABC Tours, Inc.; Crown Travel Service, Inc., doing business as Rona Travel, and/or Club ABC Tours, Defendants-Appellees. Sophie CHASSER and Anna Schneider, Plaintiffs-Appellees, v. ACHILLE LAURO LINES, The Lauro Lines Flotto Achille, Chandris Cruise Lines and ABC Tours Travel Club, Defendants-Appellees. Viola MESKIN, Seymour Meskin, Sylvia Sherman, Paul Weltman and Evelyn Weltman, Plaintiffs-Appellees, v. ACHILLE LAURO LINES, The Lauro Lines Flotto Achille, Chandris Cruise Lines and ABC Tours Travel Club, Defendants-Appellees. Donald SAIRE and Anna G. Saire, Plaintiffs-Appellees, v. ACHILLE LAURO EDM/N ACHILLE LAURO S.N.C. COMMISSARIO LAURO S.N.C., Commissario of the Flotto Achille Lauro in Amministrazione and Chandris, Inc., Defendants-Appellees. Frank R. HODES and Mildred Hodes, Plaintiffs-Appellees, v. PALESTINE LIBERATION ORGANIZATION, an Unincorporated Association, John Doe, President, PLO and Richard Roe, Treasurer, PLO, Defendants-Appellants. Donald SAIRE and Anna G. Saire, Plaintiffs-Appellees, v. PALESTINE LIBERATION ORGANIZATION, an Unincorporated Association, John Doe as President and Richard Roe as Treasurer of the Palestine Liberation Organization, Defendants-Appellants. ocket 90-9060. |
| Court | U.S. Court of Appeals — Second Circuit |
Rodney E. Gould, Framingham, Mass. (Rubin, Hay & Gould, of counsel), for plaintiffs-appellees Club ABC Tours, Inc.; Crown Travel Service, Inc. and/or Club ABC Tours dba Rona Travel; and ABC Tours Travel Club.
Daniel J. Dougherty, New York City (Todd L. Platek, Kirlin, Campbell & Keating, of counsel), for plaintiffs-appellees Chandris (Italy) Inc.; Port of Genoa, Italy; Chandris Cruise Lines; and Chandris, Inc.
Arthur M. Luxemberg, Law Office of Perry Weitz, New York City, of counsel, for plaintiffs-appellees Chasser, Meskin, Schneider, Sherman and Weltman.
William Larson, Jr., Newman, Schlau, Fitch & Burns, New York City, of counsel, for plaintiffs-appellees Saire.
Raymond A. Connell, Connell Losquadro & Zerbo, New York City, of counsel, for plaintiffs-appellees S.N.C. Achille Lauro Ed Altri-Gestione Motonave Achille Lauro in Amministrazione Straordinaria; Commissario of the Flotta Achille Lauro in Amministrazione Straordinaria; Achille Lauro Lines; Achille Lauro Ed Altri-Gestione M/N Achille Lauro S.N.C.; The Lauro Lines Flotta Achille; Commissario Lauro S.N.C.; and Lauro Lines s.r.l.
Steven M. Freeman, Tamar Sadeh Ellison, Justin J. Finger, Jeffrey P. Sinensky, Ruth L. Lansner, Anti-Defamation League Before OAKES, Chief Judge, TIMBERS and KEARSE, Circuit Judges.
of counsel, for amicus curiae Anti-Defamation League.
The Palestine Liberation Organization (the "PLO") appeals from a judgment of the United States District Court for the Southern District of New York, Louis L. Stanton, Judge, reported at 739 F.Supp. 854, denying its motion to dismiss various complaints brought against it in connection with the October 1985 seizure of the Italian passenger liner Achille Lauro and the killing of passenger Leon Klinghoffer. The district court rejected the PLO's claims that it is immune from suit in United States courts, that the complaints against it raise non-justiciable political questions, that service of process on its Permanent Observer to the United Nations (the "UN") was insufficient under Rule 4 of the Federal Rules of Civil Procedure, and that personal jurisdiction could not be asserted over it in the state of New York. For the reasons set forth below, we agree with the district court that the PLO is not immune from suit and that this case does not present a non-justiciable political question. However, because we conclude that the remaining questions cannot be resolved on the record before us, we vacate the judgment of the district court and remand the case for further findings.
The PLO, which is headquartered in Tunis, Tunisia, describes itself as
the internationally recognized representative of a sovereign people who are seeking to exercise their rights to self-determination, national independence, and territorial integrity. The PLO is the internationally recognized embodiment of the nationhood and sovereignty of the Palestinian people while they await the restoration of their rights through the establishment of a coomprehensive [sic], just and lasting peace in the Middle East.
739 F.Supp. at 857 (quoting affidavit of Ramsey Clark). On November 15, 1988, the Palestine National Council issued a Declaration of Statehood, proclaiming the existence of the State of Palestine and vesting the powers of the provisional government in the executive committee of the PLO. The United States does not give diplomatic recognition to Palestine, although several other nations do.
Since 1974, the PLO, through its representative Zuhdi Labib Terzi, has participated at the UN as a permanent observer. To support its activities at the UN, the PLO purchased a building in Manhattan, which it uses as its UN Mission (the "Mission"). Mr. Terzi and his family reside at the Mission, and eight other employees work there as well. From time to time, other high-ranking officers of the PLO, including its Chairman, Yassar Arafat, use the Mission. In addition to owning a building, the PLO owns an automobile and maintains a bank account in New York, and has a telephone listing in the NYNEX white pages. From time to time, the PLO has engaged in various fundraising and propaganda efforts in New York and elsewhere.
In 1987, Congress enacted the Anti-Terrorism Act (the "ATA"), 22 U.S.C. Secs. 5201-5203 (1988), which makes it unlawful "to receive anything of value except informational material from the PLO" or "to expend funds from the PLO" if the purpose is to further the PLO's interests. Id. Sec. 5202(1)-(2). The ATA also forbids the establishment or maintenance of "an office, headquarters, premises, or other facilities or establishments within the jurisdiction of the United States at the behest or direction of, or with funds provided by the Palestine Liberation Organization or any of its constituent groups, any successor to any of those, or any agents thereof." Id. Sec. 5202(3). The ATA does not apply, however, to the PLO's Mission in New York. See United States v. Palestine Liberation Organization, 695 F.Supp. 1456, 1464-71 (S.D.N.Y.1988).
On October 7, 1985, four persons seized the Italian cruise liner Achille Lauro in the Eastern Mediterranean Sea. During the course of the incident, the hijackers murdered an elderly Jewish-American passenger, Leon Klinghoffer, by throwing him and the wheelchair in which he was confined overboard. Shortly after the incident, the hijackers surrendered in Egypt. They were then extradited to Italy, where they were charged and convicted of crimes related to the seizure.
At this point, it remains unclear what role, if any, the PLO played in the events described above. According to some reports, the seizure was undertaken at the behest of Abdul Abbas, who is reportedly a member of the PLO. The PLO, however, denies any responsibility for the hijacking, and maintains that its involvement in the affair was limited to helping to secure the surrender of the hijackers and to ensure the safety of the ship and its passengers.
On November 27, 1985, Marilyn Klinghoffer 1 and the estate of Leon Klinghoffer filed suit in the Southern District of New York against the owner of the Achille Lauro, the charterer of the vessel, two travel agencies, and various other defendants. Other passengers who were aboard the Achille Lauro during the hijacking also commenced actions in the Southern District against the ship's owner and charterer, as well as against the travel agencies. The defendants in these actions then impleaded the PLO, seeking indemnification or contribution, as well as compensatory and punitive damages for tortious interference with their businesses. On October 7, 1988, two other passengers on the Achille Lauro brought separate actions in the Southern District against the PLO directly.
On April 27, 1987, the PLO moved to dismiss the third party complaints against it. This motion was later extended to encompass the two direct suits as well. In an opinion and order dated June 7, 1990, the court denied the PLO's motion. The PLO then moved for reargument, as well as for certification of the case for interlocutory appeal. The court denied the PLO's motion for reargument, but granted the motion for certification. Thereafter, in an opinion dated December 7, 1990, we granted the PLO's petition for permission to appeal, see 921 F.2d 21, and this appeal followed.
The PLO first argues that it is a sovereign state and therefore immune from suit under the Foreign Sovereign Immunities Act (the "FSIA"), 28 U.S.C. Sec. 1602 et seq. (1988). As support for this argument, it relies on its "political and governmental character and structure, its commitment to and practice of its own statehood, and its unlisted and indeterminable membership." Brief for Appellant at 7. However, this Court has limited the definition of "state" to " 'enti...
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